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IT IS ORDERED as set forth below: ij

Date: February 14, 2020 WA

Jeffery W. Cavender

U.S. Bankruptcy Court Judge

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

IN RE: CASE NO. 19-65022-JWC

CHADRUS LEQUARDRA BROWN, CHAPTER 7

Debtor.

ORDER

THIS MATTER is before the Court on the Request for Dismissal (the “Request for

Dismissal”) (Doc. No. 23) filed by S. Gregory Hays in his capacity as Chapter 7 Trustee

(“Trustee”), Debtor’s Application for Waiver of Chapter 7 Filing Fee (the “Fee Waiver

Application”) (Doc. No. 3), and Debtor’s Motion to Extend Time to File Schedules (the

“Application to Extend”) (Doc. No. 10). For the reasons stated below, the Request for Dismissal

is granted, and the Fee Waiver Application and Application to Extend are denied.

Debtor initiated this chapter 7 case on September 20, 2019 by filing a voluntary petition

for non-individuals filing for bankruptcy (Doc. No. 1). In the petition, Debtor identified itself as

a trust. The same day, Debtor filed the Fee Waiver Application seeking waiver of the chapter 7

filing fee and stating that Debtor was incarcerated and had no income. The Court entered an order

on September 27, 2019 requiring Debtor to supplement the petition with the schedules and

documents necessary to evaluate the Fee Waiver Application (Doc. No. 6). Debtor filed the

Application to Extend on October 7, 2019.

The Court held a hearing on the Application to Extend and the Fee Waiver Application on

December 18, 2019 (the “Hearing”), primarily to determine whether Debtor was eligible for a

waiver of the chapter 7 filing fee. Chadrus Brown appeared telephonically at the Hearing, and

there was no appearance by the Trustee or any other party in interest. Chadrus Brown indicated at

the Hearing that his motive in filing this case was for this Court to remove him from prison. A

bankruptcy court, however, has “no conceivable interest” in enjoining enforcement of criminal

statutes and related prison sentences resulting therefrom. See Barnette v. Evans, 673 F.2d 1250,

1253 (11th Cir. 1982). Thus, this Court has no power to release Chadrus Brown from his

imprisonment. Unable to grant the primary relief sought in this case, the Court finds sufficient

grounds to dismiss this bankruptcy case based on the record before it and Chadrus Brown’s

representations to the Court at the Hearing.

a. Dismissal under 11 U.S.C. § 707(a).

1. Debtor failed to appear at the § 341 meeting of creditors.

The Trustee requests dismissal of this case as a result of Debtor’s failure to attend three

separately scheduled 341 meetings. A chapter 7 case may be dismissed for cause, including

“unreasonable delay by the debtor that is prejudicial to creditors[.]” 11 U.S.C. § 707(a). Courts

have found that failure to attend a duly noticed and scheduled meeting of creditors pursuant to 11

U.S.C. § 341 is cause for dismissal.1 See, e.g., In re Rust, 1 B.R. 656 (Bankr. M.D. Tenn. 1979)

(holding that debtor’s failure to appear at 341 meeting constituted grounds for dismissal without

prejudice); In re Bresler, 119 B.R. 400 (Bankr. E.D.N.Y. 1990) (finding that debtor’s repeated

failure to attend 341 meeting and file schedules was grounds for dismissal). Furthermore, pursuant

to this Court’s General Order 2-2005, a debtor’s failure to appear at a duly noticed and scheduled

341 meeting is grounds for dismissal of a chapter 7 case. The record reflects that Debtor failed to

appear at three consecutive duly noticed and scheduled 341 meetings.

Debtor’s first meeting of creditors was scheduled for October 29, 2019. Pursuant to the

Certificate of Service filed on September 27, 2019, notice of Debtor’s first 341 meeting was served

on Debtor at Debtor’s address of record via first class mail (Doc. No. 7). Debtor failed to appear

at his first scheduled 341 meeting, and the meeting was rescheduled for November 19, 2019, with

notice thereof sent to Debtor’s address of record via first class mail (Doc. No. 12). The Trustee

requested dismissal of Debtor’s case after Debtor failed to appear at the rescheduled 341 meeting.

Debtor’s case was dismissed in error on November 21, 2019 but reinstated the same day (Doc.

Nos. 16 and 17). The United States Trustee rescheduled Debtor’s 341 meeting for December 17,

2019, with notice thereof sent to Debtor’s address of record via first class mail (Doc. Nos. 19 and

20). Debtor failed to appear at this third 341 meeting, and the Trustee again requested dismissal of

this case for Debtor’s failure to appear.

A debtor petitioning this Court for relief under the Bankruptcy Code must comply with

certain duties, such as “filing appropriate statements and schedules, appearing at the meeting of

creditors, and cooperating with the case trustee and the United States Trustee regarding the

1 All statutory references contained herein are to Title 11 of the United States Code (the

“Bankruptcy Code”) unless otherwise stated.

administration of the bankruptcy estate.” In re Michael, 285 B.R. 553, 556 (Bankr. S.D. Ga. 2002).

Section 343(a) of the Bankruptcy Code provides that a “debtor shall appear and submit to

examination under oath at the meeting of creditors under section 341(a) of this title.” 11 U.S.C.

§ 343(a) (emphasis added). Bankruptcy Rule 2003(a) provides that “[t]he [341] meeting may be

held at a regular place for holding court or at any other place designated by the United States

trustee within the district convenient for the parties in interest.” Fed. R. Bankr. P. 2003(a). Neither

§ 343 nor Bankruptcy Rule 2003 specifically provide the United States Trustee or the bankruptcy

court the authority to waive the requirement that a debtor appear and submit to examination under

oath at the 341 meeting. In re Michael, 285 B.R. at 556 (citing In re Sochia, 231 B.R. 158, 161

(Bankr. W.D.N.Y. 1999)). As a result, some courts disallow any exceptions to a debtor’s

mandatory attendance at 341 meetings. See In re Chandler, 66 B.R. 334, 335-36 (N.D. Ga. 1986)

(citing In re Import Toy Sales, 41 B.R. 784, 785 (Bankr.S.D.Fla.1984); In re Martin, 12 B.R. 319,

320 (Bankr.S.D.Ala.1981)).

Other courts have found limited exceptions for a debtor’s personal appearance at a 341

meeting in certain circumstances when requested by the debtor. See In re Chandler, 66 B.R. at

335-36 (listing examples of debtors being allowed to complete their 341 meetings without

appearing in person “where a good and sufficient reason is given”); see also In re Carstarphen,

No. 02-43450, 2003 WL 26119291, at *1 (Bankr. S.D. Ga. June 16, 2003) (same); In re Vilt, 56

B.R. 723 (Bankr. N.D. Ill. 1986) (questioning mandatory attendance at 341 meeting while

mandatory attendance at discharge hearings under § 524(d) is often waived). Examples of

scenarios meriting waiver of the 341 attendance requirement include a debtor confined by physical

illness or a debtor stationed outside of the country on military or religious duty. In re Vilt, 56 B.R.

723 (citing In re Sullivan, 30 B.R. 781 (Bankr. E.D. Pa. 1983); In re Stewart, 14 B.R. 959 (Bankr.

N.D. Ohio 1981)). Previous courts, however, have declined to waive a debtor’s attendance at a 341

meeting simply because of a debtor’s incarceration. See, e.g., In re Michael, 285 B.R. 553 (denying

prisoner/debtor’s motion to reconsider dismissal after case dismissed following order denying

prisoner/debtor’s telephonic appearance at 341 meeting where debtor showed no reasons beyond

incarceration to waive attendance requirement). The record in this case does not show that Debtor

requested relief to be excused from a personal appearance at any of the three scheduled 341

meetings. Because Debtor failed to request relief from the attendance requirement or establish any

special circumstances beyond his confinement meriting a waiver, the Court declines to waive

Debtor’s required attendance, and Debtor’s failure to attend the 341 meetings constitutes grounds

for dismissal of this case.

2. Debtor’s status as a purported trust renders it ineligible for bankruptcy.

Even if Debtor were to request relief to attend the 341 meeting telephonically, the Court

would be unlikely to grant such relief because Debtor, as a purported trust, is ineligible to be a

debtor in this Court and because Chadrus Brown, a non-attorney, cannot represent a purported

trust in federal court. Chadrus Brown represented to the Court at the Hearing that Debtor is a trust,

and he serves as its trustee. This presents two problems. First, under the Bankruptcy Code, a trust

is not an eligible debtor in bankruptcy. “[O]nly a person that resides or has a domicile, a place of

business, or property in the United States, or a municipality, may be a debtor under this title.” 11

U.S.C. § 109(a). A “person” is defined to include an individual, partnership, or corporation, 11

U.S.C. § 101(41), and does not include a trust other than a business trust. See In re Darren Buckner

Living Tr., No. 12-70036-MHM, 2012 Bankr. LEXIS 5050, at *1-2 (Bankr. N.D. Ga. Oct. 5, 2012)

(“A non-business trust is not eligible to be a debtor under Chapter 7.”); see also Shawmut Bank

Conn. v. First Fidelity Bank (In re Secured Equip. Trust of Eastern Airlines), 38 F.3d 86, 32

C.B.C.2d 1069 (2d Cir. 1994) (discussing attributes of a business trust); Hunt v. TRC Properties

(In re Hunt), 30 C.B.C.2d 139, 160 B.R. 131 (B.A.P. 9th Cir. 1993); In re Pace Trustee of Pace

Irrevocable Trust, 376 B.R. 334 (Bankr. M.D. Fla 2007). Chadrus Brown provided no argument

or evidence establishing that Debtor is a business trust under any existing law.

The second problem arising from Debtor’s status as a purported trust is that a trust must be

represented in federal court by an attorney. Hays v. Hamblen Family Irrevocable Tr. (In re

Hamblen), 360 B.R. 362, 365 (Bankr. N.D. Ga. 2006). See also Michel v. United States, 519 F.3d

1267, 1271 (11th Cir. 2008) ("A party cannot be represented by a nonlawyer, so a pleading signed

by a nonlawyer on behalf of another is null"); C.E. Pope Equity Tr. v. United States, 818 F.2d 696,

697 (9th Cir. 1987) (holding that a nonlawyer could not appear pro se on behalf of trust). Chadrus

Brown stated at the Hearing that (i) he is not an attorney, and (ii) he was appearing as trustee to

represent the trust. Thus, as the Court informed Chadrus Brown at the Hearing, Debtor is not

eligible to be a debtor in bankruptcy, and even if it were, Chadrus Brown could not represent

Debtor as a trust in this case.

Chadrus Brown stated at the Hearing that Debtor could not afford an attorney and requested

that the Court appoint one. The Court declines to do so. “Generally, a civil litigant has no

constitutional right to the appointment of counsel.” In re Fitzgerald, 167 B.R. 689, 691 (Bankr.

N.D. Ga. 1994) (citing Dean v. Barber, 951 F.2d 1210 (11th Cir.1992); Poole v. Lambert, 819

F.2d 1025, 1028 (11th Cir.1987)). “An indigent has a right to appointed counsel only when, if he

loses, he may be deprived of his physical liberty.” Id. (citing Lassiter v. Dept. of Social Services,

452 U.S. 18, 26–27, 101 S.Ct. 2153, 2159–2160, 68 L.Ed.2d 640, reh. denied, 453 U.S. 927, 102

S.Ct. 889, 69 L.Ed.2d 1023 (1981)). As a purported trust, Debtor’s freedom or physical liberty is

not affected by these bankruptcy proceedings. Mr. Brown’s current incarceration under a life

sentence does not result from anything occurring in or related to this bankruptcy proceeding. In

addition, “[t]here is no constitutional right to obtain a discharge in bankruptcy, and bankruptcy is

not a fundamental right.” Id. (citing United States v. Kras, 409 U.S. 434, 445, 93 S.Ct. 631, 635,

34 L.Ed.2d 626 (1973)).2

Even if 28 U.S.C. § 1915(e), which empowers a district court to appoint counsel to an

indigent, applies in bankruptcy proceedings,3 “[a]ppointment of counsel in a civil case is not a

constitutional right.” Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990). “In determining

whether to appoint counsel, the [] court typically considers, among other factors, the merits of the

plaintiff's claim and whether the claim is factually or legally so complex as to warrant the

assistance of counsel.” Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989). Court-appointed counsel

in a civil case “is a privilege that is justified only by exceptional circumstances, such as where the

facts and legal issues are so novel or complex as to require the assistance of a trained practitioner.”

Fowler, 899 F.2d at 1096.

Debtor has not presented, and the Court does not find, any exceptional circumstances to

justify appointment of counsel in this case. Other than Debtor’s status as a purported trust, Chadrus

Brown’s status as an inmate subject to a life sentence, and their combined inability to pay counsel,

nothing about this chapter 7 bankruptcy case is novel, complex, or otherwise remarkable. And no

matter the skill or training, no attorney could guide a debtor ineligible for bankruptcy to a discharge

prohibited by the Bankruptcy Code. Having thus considered the merits of Debtor’s case—

2 Even if an individual were to have a constitutional right to discharge, Debtor’s status as a

purported trust renders it ineligible for such relief. See 11 U.S.C. § 727(a)(1) (“The court shall

grant the debtor a discharge, unless—(1) the debtor is not an individual[.]”).

3 See In re Fitzgerald, 167 B.R. at 691-92, questioning whether 28 U.S.C. § 1915(e) (formerly

§ 1915(d)) applies in bankruptcy proceedings.

including that Debtor is ineligible to be a debtor in bankruptcy—the Court declines to appoint

counsel. Debtor’s ineligibility and lack of proper counsel constitute additional grounds for

dismissal of this bankruptcy case.

b. The Fee Waiver Application and Application to Extend.

Debtor’s status as a purported trust also renders it ineligible for waiver of the chapter 7

filing fee. Bankruptcy fees are governed by 28 U.S.C. § 1930, which allows for the waiver of the

filing fee in certain circumstances. To qualify, a debtor must be an individual. See 28 U.S.C. §

1930(f) (“[T]he bankruptcy court may waive the filing fee in a case under chapter 7 of title 11 for

an individual if the court determines that such individual has income less than 150 percent of the

income official poverty line . . . and is unable to pay that fee in installments.”) (emphasis added).

“Individual refers to natural persons both in plain meaning and in the context of other sections of

the Bankruptcy Code.” In re JAC Family Found., 356 B.R. 554, 557 (Bankr. N.D. Ga. 2006). As

Debtor purports to be a trust and not an individual, Debtor is not eligible for waiver of the case

filing fee, and the Fee Waiver Application is denied.

Debtor has filed the outstanding documents for which an extension was requested.

Accordingly, and because this Order dismisses this case, the Application to Extend is denied as

moot.

c. Conclusion.

For the reasons set forth above, it is

ORDERED that the Request for Dismissal is GRANTED. It is further

ORDERED that this bankruptcy case is hereby DISMISSED. It is further

ORDERED that the Fee Waiver Application is DENIED. It is further

ORDERED that the Application to Extend is DENIED as moot.

The Clerk’s Office is directed to serve a copy of this Order upon Debtor, the Chapter 7

Trustee, and the U.S. Trustee.

END OF DOCUMENT